진술거부권의 고지 대상으로서의 “피의자”의 의미

Abstract

Article 244-3 of Korean Criminal Procedure Act should be understood as the only and the most important device to guarantee the right of silence which is recognized under the Korean Constitution. Korean Supreme Court dealt with the issue of permissibility of evidence obtained without prior notice on the right of silence as well as the issue of what is a "Suspect" having the right of such prior notification in its recent decision(2011. 11. 10. decided, decision number 2011DO8125; hereinafter "The Decision"). In this article, for the purpose of reviewing the acceptability of The Decision's rationale, we will first introduce substantial meaning of the Right of Silence and then review the component of Miranda Notice, especially "Custodial Interrogation". We also relate the definition of a "Suspect" under Korean Criminal Procedural Act and the meaning of "Custodial Interrogation" believing that both concepts are appeared to solve the problem of "Compulsion Inherent". Considering the above elements, The Decision seems to suggest the right answer in that it defines a suspect in substantial way rather than formalistic one. However, the concrete rationale it suggests in construing a "Suspect" does not seem to grasp Constitutional idea of right of silence. For instance, it suggests that a Suspect's status starts only after a prosecutor find a suspicion of crime and enters into an investigation. It left too much discretion to the investigating authority to misuse its power for the purpose of obtaining illegal evidence. In conclusion, the Court should review every possible circumstances a person who is the object of interrogation could face and even he or she is not a Suspect officially, if he of she is in a situation of compulsion inherent and believed in the same situation as "Custodial Interrogation", it should be defined as a "Suspect" under Article 244-3 of Korean Criminal Procedure Act.